A three-judge federal appeals court panel cleared the way Friday for a St. Cloud couple suing Minnesota over the right to refuse to film same-sex weddings, arguing that the videos are a form of speech subject to First Amendment protections.
Carl and Angel Larsen, who run a Christian videography business called Telescope Media Group, filed a federal suit in 2016 against Minnesota's human rights commissioner, saying the state's public accommodation law could hit them with steep fines or jail time if they offered services promoting only their vision of marriage.
Writing for the panel's 2-1 majority, Judge David Stras, a former Minnesota Supreme Court justice, found that the First Amendment allows the Larsens to choose when to speak and what to say, and that their free speech rights would be violated should their business be penalized under the Minnesota Human Rights Act.
The ruling prompted a sharply worded dissent from Judge Jane Kelly, who described the decision as a "major step backward" in "this country's long and difficult journey to combat all forms of discrimination."
The lawsuit is one of several legal challenges around the nation waged on behalf of business owners seeking the right to refuse services over religious or philosophical beliefs about same-sex marriage. Attorneys for the Alliance Defending Freedom, a national conservative Christian legal group, are handling the case on behalf of the Larsens. They appeared before the Eighth U.S. Circuit Court of Appeals in St. Paul last October, months after the U.S. Supreme Court ruled in favor of a Colorado baker who also refused to serve gay couples.
Stras wrote that the wedding videos the Larsens want to create involve editorial judgment and control and "constituted a media for the communication of ideas." Minnesota has argued that its Human Rights Act regulates the Larsens' conduct and not their speech, but Stras wrote Friday that the state's argument would open up "wide swaths of protected speech" to government regulation.
"Speech is not conduct just because the government says it is," wrote Stras, whom President Donald Trump appointed to the court in 2017 and who remains on the president's shortlist of U.S. Supreme Court justice candidates.
The judge wrote that Minnesota's law is subject to strict scrutiny because it "compels the Larsens to speak favorably of same-sex marriage if they speak favorably of opposite-sex marriage." Anti-discrimination law serves an important government interest, Stras wrote, but the law can't compel speech to serve as a public accommodation for others.
In a statement Friday, Carl Larsen insisted that he and his wife "serve everyone" but "just can't produce films promoting every message."
"We are thankful the court recognized that government officials can't force religious believers to violate their beliefs to pursue their passion," Larsen said. "This is a win for everyone, regardless of your beliefs."
Minnesota Human Rights Commissioner Rebecca Lucero, in a statement, defended the state's Human Rights Act as one of the strongest anti-discrimination laws in the country.
"Minnesota is not in the business of creating second-class community members in our state," Lucero said. "Time and again, Minnesotans have chosen love and inclusion in our communities in order to build a state where our laws lift up our beautiful and complex identities, not hold them down."
Minnesota Attorney General Keith Ellison, whose office is representing Lucero in the lawsuit, called the majority decision a "perversion of the First Amendment" and "a shocking reversal of Minnesota's evolution toward equality for LGBTQ people."
"The decision smacks of other dark moments in our nation's history when courts have infamously upheld discrimination," Ellison said.
The appeals panel decision reversed a 2017 ruling by Chief U.S. District Judge John Tunheim, who dismissed the lawsuit. At one point, Tunheim described the Larsens' plan to post a notice on their website that they would deny services to same-sex couples as "conduct akin to a 'White Applicants Only' sign."
The Larsens' case now returns to Tunheim to decide whether the couple is entitled to a preliminary ruling that would let them make films promoting their view of marriage as a "sacrificial covenant between one man and one woman" without fear of being found in violation of Minnesota's Human Rights Act.
In her dissent, Kelly predicted that Friday's ruling will invite "a flood of litigation that will require courts to grapple with difficult questions about whether this or that service is sufficiently creative or expressive to merit a similar exemption." She cited examples such as florists, tattoo artists and bakers.
The court's logic, she wrote, will also equally apply "to any business that desires to treat customers differently based on any protected characteristic, including sex, race, religion, or disability."
"And what may start in the wedding business — 'we don't do interracial weddings,' 'we don't film Jewish ceremonies,' and so on — likely will not end there," Kelly wrote. "Nothing stops a business owner from using today's decision to justify new forms of discrimination tomorrow."